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by on January 28, 2020
The command-based military justice system persists despite its lack of responsibility, inefficiency, inherent prejudices and conflicts of interest.
Under this system, commanders, not prosecutors, decide whether an individual should be tried by a martial court, and the prosecutor's traditional authority and duties give way to the powers granted to the summoning authority. While American civilians can expect a transparent justice system that invests authority with a responsible prosecutor and have the legal training and experience to make the differentiated decisions necessary to assess highly tense cases, such as rape and sexual assault, the same cannot be said for justice military
Under this structure, a small minority of commanders exercise personal discretion in what is normally understood in civil justice as a "procedural discretion" competence, and their influence is dominant throughout the process. Of the approximately 14,400 army commanders, only 2.7% serve as a general court-martial calling authorities. In other words, more than 97% of commanders currently carry out their work without the ability to submit a sexual crime for trial. These commanders are not lawyers; they are pilots, infantry officers, surface warfare officers, and artillery officers. They lead thousands of troops and have immense responsibilities in managing their units. Military justice necessarily represents a small fraction of their duties, and they usually serve in these positions for two years or less before moving on to another position. Although these commanders are highly qualified in the core areas of their military function, they are inherently ill-equipped to make the necessary legal technical determinations in the administration of fair and impartial justice.
The roles traditionally performed by prosecutors who have instead been conferred on the summoning authority or commander include the ability to:
• Initiate an investigation of criminal misconduct,
• Accusing an accused of a crime,
• Submit charges to a pre-Article 32 hearing,
• Determine which changes (if any) will be brought to trial by martial courts,
• Determine whether charges will be sent to a special court (misdemeanor) or general court (crime),
• Determine whether an expert witness will testify or employ expert consultants,
• Grant immunity to any witness, whether witness or transactional,
• Entering a pre-trial agreement (plea agreement) with a defendant,
• Remove any charges,
• Add new charges,
• Put a suspect in remand,
• ordering a convicted offender in awarded confinement,
• Force a military witness to testify,
• Force a military witness to cooperate with the prosecution,
• Decide to try a defendant again in the event of a null judgment,
• Appeal an order from a judge judging a charge or suppressing evidence, and
• Determine whether a case that has been revoked on appeal should be tried again.
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